[Cites 11, Cited by 0]
Bombay High Court
Shaligram S/O Bapurao Shrungare ... vs Krushnarao W/O Laxmanrao Shingnad on 22 May, 2026
2026:BHC-NAG:7366
MCA 258.08 dt. 22.05..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION [REVIEW] NO.258 OF 2018
IN
SECOND APPEAL NO.273 OF 1995 (D)
PETITIONERS : 1. Shaligram S/o Bapurao Shrungare
Ori. Defts.
[expired] through legal heirs
1-a. Suman @ Geeta Wd/o Shaligram
Shrungare, Aged about 66 years, Occ.
Housewife,
1-b. Sanjay S/o Shaligram Shrungare,
Aged about 48 years, Occ. Private
Job,
1-c. Nandu S/o Shaligram Shrungare,
Aged about 44 years, Occ. Service,
All Nos. 1[a] to 1[c] R/o Revenue
Colony, Ratanlal Plots, Akola, Tq. and
Dist. Akola.
1d. Chitra @ Bali Ganesh @ Ashok
Barghat, Aged adult, Occ. Household
work, R/o Gadegaon Road, Near
Tahsil Office, Old court, Telhara, Tq.
Telhara, Dist. Akola.
..VERSUS..
RESPONDENTS : 1) Krushnarao W/o Laxmanrao
Ori. Pltff.
Shingnad Aged about 83 years, Occ.
Retired R/o Umari, Tq. and Dist.
Akola. (dead) thru. LR's.
Amended as per 1. Subhadrabai w/o Krushnarao
Courts order
dt.05.02.2024 Singnad, Aged about 88 years,
MCA 258.08 dt. 22.05..odt
2
Occupation - Nil, R/o. Opp. State
Bank Colony, Krushnai Niwas, Near
House of Shri Prakash Wakhare, Adv.,
Small Umari, Akola, Tah. And District
- Akola.
2. Dilip s/o Krushnarao Singnad, Aged
about 60 years, Occupation - Retired,
R/o. PIL Colony, Malkapur, Tah. And
District - Akola.
3. Sunil Krushnarao Singnad, Aged
about 55 years, Occupation - Private
Service, R/o. Near Hanuman Temple,
MHADA Colony, Khadki, Akola, Tah.
And District - Akola.
4. Anil Krushnarao Singnad, Aged about
57 years, Occupation - Private
Service.
5. Sanjay Krushnarao Singnad, Aged
about 52 years, Occupation - Private
Service.
Nos.4 & 5 R/o. Opp. State Bank
Colony, Krushnai Niwas, Near house
of Adv. Shri Prakash Wakhare, Small
Umari, Akola, Tah. And District
Akola.
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Mr. J. B. Gandhi, Advocate for Appellant.
Mr. M. G. Sarda, Advocate for respondents.
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CORAM : ROHIT W. JOSHI, J.
RESERVED ON : 29.04.2026
PRONOUNCED ON : 22.05.2026
MCA 258.08 dt. 22.05..odt
3
JUDGMENT:
1) Heard finally with consent of learned advocates for
the respective parties.
2) The present application is filed under Section 114
of the Code of Civil Procedure, 1908 (for short, "the CPC")
seeking review of judgment dated 25.08.2016 passed by this
Court in Second Appeal No.273 of 1995. The review
petitioners are legal representatives of late Shalikram
Shrungare, defendant in Special Civil Suit No.102 of 1991.
The respondents are legal representatives of late Krishnarao
Shingnad, plaintiff in the aforesaid civil suit. The parties will
hereinafter be referred to as "plaintiff" and "defendant".
3) The plaintiff and defendant had entered into an
agreement of sale dated 10.05.1980 with respect to suit
property which comprises of house situated in the layout of
Revenue Department Subordinate Co-operative Housing
Society Ltd., Akola (hereinafter referred to as, 'the Society').
The total sale consideration under the agreement was
Rs.45,000/-. The defendant - purchaser has paid entire
MCA 258.08 dt. 22.05..odt
agreed sale consideration of Rs.45,000/- to the plaintiff -
vendor. The defendant - purchaser was also placed in
possession of the suit property by the plaintiff - vendor. These
facts are not in dispute. In order to complete the sale
transaction, no objection from the Society was needed. The
agreement provided that the plaintiff - vendor shall make
appropriate application seeking permission for transfer of the
suit property in favour of defendant - purchaser and in the
event such permission was not received within a period of 2
years, the plaintiff - vendor shall refund amount of
Rs.45,000/- to the defendant - purchaser, who will return the
possession of suit property to the plaintiff - vendor.
4) The plaintiff had made application seeking
permission to transfer the land on two occasions i.e. on
18.04.1986 and 03.08.1987. Both these applications were
rejected. The defendant - purchaser also filed application for
seeking permission on 28.10.1987 which was also rejected.
5) In this backdrop, the plaintiff filed Special Civil Suit
No.102 of 1991 for recovery of possession. The defendant
opposed the suit by filing written statement and contended
MCA 258.08 dt. 22.05..odt
that the plaintiff deliberately did not make compliance of the
condition in the agreement for obtaining permission. The
learned Trial Court decreed the suit in view of the covenant
in the agreement that if, for any reason, the transaction is
required to be cancelled, the plaintiff - vendor will return
amount of Rs.45,000/- to the defendant - purchaser and
defendant - purchaser will deliver possession of the suit
house to the plaintiff - vendor. The learned Trial Court has
held that the agreement had become void in view of rejection
of application seeking permission for transfer of the suit
property.
6) Being aggrieved by the aforesaid decree passed by
the learned Joint Civil Judge, Senior Division, Akola on
30.09.1991 in Special Civil Suit No.102/1991, the defendant
- purchaser filed appeal being Regular Civil Appeal No.311 of
1991. The said appeal came to be allowed vide judgment and
decree dated 21.04.1995 passed by the learned Additional
District Judge, Akola. The learned First Appellate Court has
held that vendor - plaintiff deliberately did not make
application seeking permission to the competent authority
MCA 258.08 dt. 22.05..odt
within the prescribed time period and that the suit was also
barred by limitation. Perusal of findings recorded by the
learned First Appellate Court will reveal that application
preferred by the plaintiff - vendor was admittedly not in the
prescribed form and that the plaintiff also did not agree for
making payment of component of 50% profits to the
concerned Co-operative Society, as a consequence of which
the application was rejected.
7) In view of the above, the learned First Appellate
Court held the plaintiff - vendor to be responsible for
permission being refused. The learned First Appellate also
accepted the contention of the defendant - purchaser that the
prayer for possession was based on cancellation of agreement
and that the relief of cancellation was the predominant relief.
The learned First Appellate Court recorded that the
requirement of obtaining permission was not an impossible
condition and that it was still open to make correct
application seeking permission for transfer and therefore
decree for possession could not be sustained. It is held that
since the permission was rejected on 28.10.1987, the suit
MCA 258.08 dt. 22.05..odt
ought to have been filed within a period of 3 years therefrom.
On this ground, it was held that the suit was barred by
limitation.
8) Being aggrieved by the aforesaid decree passed by
the learned First Appellate Court, the plaintiff - vendor filed
Second Appeal No.273 of 1995 before this Court. Initially,
vide order dated 24.08.1995, substantial question of law
pertaining to limitation was framed as under:-
"Whether the Court below was right in relying
upon Article 54 and 65 of the Limitation Act?"
9) Thereafter additional substantial question of law
pertaining to Section 53-A of the Transfer of Property Act,
1882 came to be framed while delivering the judgment in the
appeal on 25.08.2026.
10) While dealing with substantial question of law
under Section 53-A of the Transfer of Property Act, this Court
has held that both parties agreed that permission of Collector
was required in order to complete the sale transaction and
that such permission was not granted. In view of the
aforesaid, this Court came to the conclusion that the situation
MCA 258.08 dt. 22.05..odt
was covered by Section 32 of the Contract Act and held that
rejection of application for grant of permission by the
Collector resulted in rendering the contract void. It is held
that whether the plaintiff - vendor was at fault or not was
not of much consequence, since the effect of permission not
being granted, namely that the plaintiff - vendor will refund
the sale consideration and the defendant - purchaser will
deliver back the possession, was provided under the
agreement itself.
11) As regards limitation, it is held that limitation for
filing suit will not be governed by Article 54 since the suit is
not a suit for specific performance. This Court has held that
limitation for filing the suit will be governed by Article 65.
Accordingly, it was held that the suit was filed within
limitation. In view of such findings, the appeal came to be
allowed.
12) The defendant - purchaser has filed application
seeking review of the judgment passed by this Court. Notice
on the application for review was issued vide order dated
03.08.2017 recording that the question which arises for
MCA 258.08 dt. 22.05..odt
consideration is as to whether the plaintiff can derive
advantage of covenant in the agreement by deliberately
avoiding fulfilment of conditions contemplated under the
agreement and in such a situation whether the contract can
be considered to be a contingent contract.
13) Perusal of judgment by the learned First Appellate
Court will demonstrate that Secretary of the Society was
examined as witness in the case. He has stated that there was
a prescribed form for making application seeking no
objection certificate. The witness has stated that application
by the plaintiff was not in the prescribed form. Apart from
this, the witness has also stated that as per the rules of
Society, 50% of the amount of profits earned by the
transferor were required to be deposited with the Society,
which was a condition for grant of permission. The witness
has stated that the endorsement of the President of the
Society on the application form submitted by the plaintiff
indicated that he had to deposit 50% of the amount of profits
on the transaction. The witness has stated that the
application was not forwarded to the Collector since it was
MCA 258.08 dt. 22.05..odt
not in prescribed form. He has also stated that the application
is rejected because the plaintiff did not agree to deposit 50%
of the amount of profits as contemplated by the rules of the
Society. The witness has stated that in one case, the Collector
had granted permission where the application was filed in the
prescribed form and the seller had agreed to pay 50% of the
amount of profit. Likewise, the Secretary has also stated that
if an application in prescribed format is made, it will be
forwarded to the Collector for further consideration.
14) There are clear findings of facts recorded by the
learned First Appellate Court, upon appreciation of oral
evidence of the Secretary of the Society and also upon
perusal of the application filed by the plaintiff vide Exhibit-
49, that the application could not be processed and
appropriate orders regarding no objection certificate could
not be obtained for the fault of the plaintiff. The plaintiff did
not file application in the prescribed format and also did not
agree for payment of 50% amount of profits.
15) It is thus clear that the condition stipulated in the
agreement could not be fulfilled for reasons solely
MCA 258.08 dt. 22.05..odt
attributable to the plaintiff. It is also clear that the rejection
of an application is not final and it is also clear that although
an application is rejected once, it can be made again and such
application can be considered on its own merits. The
agreement is not rendered void.
16) The learned advocate for the defendant/review
petitioner, has placed reliance on judgment of the Hon'ble
Supreme Court in the case of Govindbhai Gordhanbhai Patel
and others vs. Ghulam Abbas, Mulla Alli Bhai and others
reported in 1977 (3) SCC 179. In the said case, permission
for sale of agricultural land was required under the
provisions of the Maharashtra Tenancy and Agricultural
Lands Act, 1948. The application was rejected since it was
not accompanied by a certificate contemplated under Rule
36-F. The Hon'ble Supreme Court has held that in such cases
a fresh application complying with the statutory provisions
can be made and it can be decided on its own merits. It is
held that rejection of earlier application will not affect the
maintainability of the fresh application. It is held that earlier
orders rejecting applications will not be conclusive and that
MCA 258.08 dt. 22.05..odt
rejection of an application on earlier occasion will by itself
not render the contract void.
17) Per Contra, Mr. Mohta, the learned Advocate for the
plaintiff/respondent, vehemently argues that the agreement
is invalid since permission to transfer the property is refused
by the competent authority. He places reliance on judgment
of this Court in the case of Nyanoba Sukhdeo Lande and
another vs. Shrirang Mahatarraji Dhurwade reported in 1982
(2) Bom CR 18. The said judgment holds that section 53-A of
Transfer of Property Act is not applicable to a case of invalid
or void agreement of sale. The judgment deals with a case
where a tenant upon whom ownership was conferred under
section 38-E of the Hyderabad Tenancy Act had entered into
agreement of sale with respect to the tenanted agricultural
land and had also placed the prospective purchaser in
possession of the agricultural land. Section 50-B prohibits
transfer of property by a tenant upon whom ownership is
conferred under the Act, without prior permission of the
Collector. In view of such statutory scheme it is held that
since agreement of sale coupled with possession is entered
MCA 258.08 dt. 22.05..odt
into without prior permission, the agreement is illegal and
consequently possession cannot be protected under section
53-A.
18) Apart from this, the learned advocate for the
respondent/applicant places reliance on judgment of the
Hon'ble Supreme Court in the case of Chandra Kishore Jha
versus Mahavir Prasad and others reported in AIR 1999 SC
3558 to contend that where a statute provides that a
particular thing should be done in a particular manner, it
should be done in that manner alone.
19) Whereas there cannot be any dispute about the
ratio of judgment of the Hon'ble Supreme Court in the case of
Chandra Kishore Jha (supra), however, it is difficult to
comprehend how the said decision is applicable to the facts
of the present case.
20) As regards judgment of this Court, in the case of
Nyanoba Lande (supra), in the said case there was a statutory
provision which prohibited transfer of land without prior
permission from the Collector. In order to circumvent the said
statutory provision, an agreement of sale was entered into
MCA 258.08 dt. 22.05..odt
and possession of land was delivered to the prospective
purchaser. In this backdrop, this Court has held that the
agreement was an invalid agreement and consequently
possession of prospective purchaser could not be protected
under Section 53-A of the Transfer of Property Act.
21) The learned Trial Court has held that the agreement
was rendered void since permission, as contemplated in
terms of the agreement, was refused. In this regard, it will be
appropriate to refer to the relevant clause of the agreement
regarding re-delivery of possession, true english transaction
of which is quoted in paragraph 15 of judgment of the
learned Trial Court.
"The agreement to sell of this House has
taken place on 1.6.82. If after that till the sale
deed is executed, this house will remain in
your possession. If for any reason this
transaction has to be cancelled, then I will
return your Rs. 45,000/-. That when I return
your Rs. 45,000/- at that time give me
possession of the house. There will be no
MCA 258.08 dt. 22.05..odt
interest on the money. "
22) Perusal of the said clause will indicate that if the
transaction was required to be cancelled for any reason, then
the plaintiff - vendor was to return the sale consideration
received by him from the defendant - purchaser and the
defendant - purchaser was to return possession of the suit
property to the plaintiff - vendor thereafter. Although the
parties agreed for obtaining permission for completing the
sale transaction and there is evidence on record that in some
cases permission is in fact granted, the relevant provision
under which such permission was required to be obtained is
not referred in the judgment of the learned Trial Court or
judgment under review passed in the Second Appeal. Even
during the course of hearing of the present application for
review, attention of this Court was not drawn to the relevant
provision which requires permission for sale of property. The
consequence of refusal of permission, therefore, cannot be
ascertained. It is in this backdrop when one refers to the
aforesaid clause for repayment of sale consideration and re-
delivery of possession, it is seen that the said contingency will
MCA 258.08 dt. 22.05..odt
arise only when the transaction "has to be cancelled". Decree
for delivery of possession cannot be sustained merely on the
ground that permission is refused, since consequence of such
refusal is not brought on record by the plaintiff.
23) That apart, as is held in the case of Govindbhai
Gordhanbhai Patel (supra), an application for grant of
permission to transfer property, when it is rejected due to
some technical reason, does not operate as a res judicata and
on a fresh application being made in compliance with all the
requisite provisions, the authority can consider to grant
permission irrespective of rejection of earlier application. The
ratio of the said judgment is squarely applicable to the facts
of the present case where permission was also not granted on
earlier occasions for a technical reason that application was
not in prescribed format and because the plaintiff - vendor
did not agree to deposit 50% amount of profit. In the
considered opinion of this Court, the learned First Appellate
Court has rightly held that refusal of permission will not
render the agreement void in the facts of the present case,
since a fresh application seeking permission for transfer can
MCA 258.08 dt. 22.05..odt
still be made. It will be pertinent to mention that even on the
earlier occasion, application seeking permission was filed
much beyond the period stipulated under the agreement.
24) It must also be borne in mind that it is a settled
principle of law that no person should be allowed to derive
benefit of his own wrong. In the case at hand, the plaintiff
has not made applications in the prescribed format. He has
not shown readiness to deposit 50% of the amount of profits.
The applications were rejected on both occasions for the
reasons attributable to the plaintiff. It will be unjust and
inequitable to allow the plaintiff - vendor to reap benefit of
his own wrong, particularly when fresh application seeking
permission can still be made and also because the plaintiff
has not brought on record the consequence of refusal of
permission.
25) It is precisely in the light of this fact the learned
Judge, who was pleased to initially allow the second appeal
filed by the plaintiff - vendor has issued notice in the present
application for review on the following question framed vide
order dated 03.08.2017-
MCA 258.08 dt. 22.05..odt
"Whether the plaintiff can take advantage to
avoid the contract for non fulfillment of the
condition which he himself was required to
comply with and whether in such event, the
contract in question can be considered as a
contingent contract, are the questions which are
raised in the review petition."
26) It must be stated that even if the contract is
considered to be contingent contract, it will not become void
since a fresh application seeking permission for transfer,
compliant with all prerequisites can still be made and
entertained on merits.
27) In the light of reasons recorded above, this Court is
of the opinion that the plaintiff - vendor cannot be permitted
to avoid the contract and seek a decree of possession since he
himself is responsible for refusal of permission and also
because permission can still be granted, contract does not
become void. It must be reiterated that the entire agreed sale
consideration was received by the plaintiff - vendor on the
date of execution of sale deed itself and, as such, the
MCA 258.08 dt. 22.05..odt
defendant - purchaser has fully complied with his obligation
of making payment to the plaintiff - vendor in terms of the
agreement.
28) Since the application is filed under Section 114 of
CPC seeking review, interference will not be permissible
unless there is an error apparent on the face of record. The
error apparent on the face of record is that although the
permission for transfer was not rejected on merits, but for a
technical reason, the agreement is held to have become void.
The settled legal principle that grant or refusal of permission
for transfer is an administrative function and even after
rejection of the application on technical ground fresh
application can be entertained and allowed has skipped the
attention while allowing the second appeal. The judgment of
the Hon'ble Supreme Court in Govindbhai Gordhandas Patel
(supra) is also not taken into consideration on this aspect.
The rejection of earlier applications does not render the
agreement void. The consequence of rejection of application
is also not established by the plaintiff. Likewise, the plaintiff
who has committed the breach of the agreement cannot be
MCA 258.08 dt. 22.05..odt
allowed to derive benefit of such breach. The application falls
within the scope of Section 114 of CPC.
29) In the light of reasons record above, the application
for review is allowed in the following terms:-
I. Judgment and decree dated 25.08.2016
passed by this Court in Second Appeal No.273
of 1995 is recalled;
II. Judgment and decree dated 21.04.1995
passed by the learned Addl. District Judge,
Akola in Regular Civil Appeal No.311 of 1991
is confirmed; and
III. Judgment and decree dated 30.09.1991
passed by the learned Joint Civil Judge, Senior
Division, Akola in Special Civil Suit No.102 of
1991 is quashed and set aside and the said civil
suit is dismissed.
30) Since the order is pronounced during vacation and
learned advocates for the respective parties are not present,
office is directed to send a separate communication to the
MCA 258.08 dt. 22.05..odt
respective learned advocates on their registered email
address and cell phone numbers.
(ROHIT W. JOSHI, J.)
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